Washington Suburban Sanitary Commission v. C.I. Mitchell & Best Co.

RODOWSKY, Judge. This appeal is from a declaratory judgment invalidating a special connection charge imposed by the Washington Suburban Sanitary Commission (WSSC). We shall affirm that determination, but only after concluding that there is neither any special statutory remedy nor any administrative agency which should exercise primary jurisdiction. There may not be any recovery of the charges paid, however, because of Maryland’s stringent voluntary payment rule. ⁵⁵⁰ WSSC is a creature of statute, originally Ch. 122 of the Acts of 1918.

The present version of that statute is Md.Code (1957, 1983 Repl.Vol., 1984 Cum.Supp.), Art. 29. 1 We have held that WSSC is a state agency for purposes of the Administrative Procedure Act. See Donocam Assocs. v. WSSC, 302 Md. 501, 510 , 489 A.2d 26, 30 (1985); Prince George’s Co. v. Blumberg, 288 Md. 275, 294-95 , 418 A.2d 1155, 1166 (1980), cert. denied, 449 U.S. 1083 , 101 S.Ct. 869 , 66 L.Ed.2d 808 (1981). The agency enjoys sovereign immunity. See Katz v. WSSC, 284 Md. 503, 509-12 , 397 A.2d 1027, 1031-32 (1979).

We have also said that WSSC “had sufficient of '[t]he attributes of a municipal corporation’ to bring it within the provision of a statute applicable in certain counties which, as a prerequisite to suit in certain instances, required written notice within 90 days after an injury or damage was sustained.” WSSC v. Pride Homes, Inc., 291 Md. 537, 539 , 435 A.2d 796, 797-98 (1981) (footnote omitted) (discussing Neuenschwander v. WSSC, 187 Md. 67 , 48 A.2d 593 (1946)). The mission of the agency includes providing for the construction, operation, and maintenance of water supply, sewerage, and storm drainage facilities in the Washington Suburban Sanitary District (the District), an area encompassing over 950 square miles in Montgomery and Prince George’s Counties and containing a population of more than one million. The capital and operating budgets of WSSC are, with limitations, subject to review and approval by the county executives and county councils of the two counties. See, e.g., § 1-204; Katz, supra, 284 Md. at 509 , 397 A.2d at 1031 .

As part of the process WSSC is required annually to prepare and present to officials of the two counties a Capital Improvements Program (the CIP). See §§ 7-101 through -107. The CIP is “a 6 year projected program of capital improvements for water, sewer, and storm drainage facilities.” § 7-101(c). Historically, WSSC has funded capital expenditures required to support the extension of service lines and the construction of treatment plants, transmission, and storage ⁵⁵¹ facilities through long-term debt financing.

This investment was recovered through various charges, including charges based upon the extent of use which a customer made of the system. Over the years growth in the District and inflation have greatly increased the amount of bonded indebtedness carried by WSSC, with consequent increases in user charges. Concerned over these increases the county councils of the two counties, while reviewing WSSC’s proposed budget for the fiscal year beginning July 1, 1978, directed WSSC to develop and recommend in its next proposed budget alternative approaches for funding the capital costs of providing water and sewer service to new users in the District. In response WSSC adopted, effective July 1, 1979, a new charge, the System Expansion Offset Charge (SEOC).

SEOC is a one-time, up front charge paid by a new WSSC customer. SEOC is paid in addition to sewer and water service charges, front foot benefit charges, the preexisting sewer and water connection charges, and subdistrict charges. 2 In that first year the SEOC for a single family dwelling unit was $485 for water and $265 for sewer, or a total of $750. That amount was the same as a then existing Interim Sewer Service Charge (ISSG) which was repealed as part of the adoption of SEOC. During that first year of SEOC a committee largely composed of public officials and businessmen, including particularly home builders, studied SEOC.

Although the committee split over whether SEOC should be retained, they agreed that if it were retained, its method of calculation should be modified. WSSC, by resolution effective July 11, 1980, substantially adopted the committee’s recommendations. This modified calculation produced an SEOC for single family dwelling units totaling $1,560, apportioned $735 to water and $825 to sewer. There are two aspects to the SEOC program.

The first is the computation of the charge itself. Because we shall conclude that SEOC is facially invalid, this opinion will not ⁵⁵² deal with the details of that computation. 3 The second aspect of the program offsets debt service from the funds collected under SEOC. The trial judge’s very full and helpful opinion describes this calculation. All SEOC payments are deposited in a separate interest bearing account.

An annual transfer is made from this account into the WSSC’s operating budget. This transfer is intended to offset debt, service in the WSSC’s operating budget resulting from the issuance of long term bonds to fund new growth facilities. The amount of this transfer is determined by another multistep mathematical calculation, hereinafter referred to as the “transfer formula” ---- The coming year’s CIP budgeted debt is divided into water and sewer projects; these projects are then divided into those for growth and those for reinforcement; and the amounts attributable to growth are then expressed as percentages of total cost for the year. Next the overall increase in debt service of the WSSC is obtained by subtracting the current year’s debt service from the projected debt service for the coming year.

The overall increase in debt service is then multiplied by the percentages attributable to growth. This figure is then multiplied by 57% which is the percentage of capital cost of serving a dwelling paid by the SEOC payor ($1,560 is 57% of $2,720, the other 43% is the offset allowance). ⁵⁵³ Therefore, the transfer from the SEOC account to the operating budget is only intended to fund 57% of debt related to new growth. The instant action was brought September 17, 1981, and was certified as a class action. Plaintiffs sought a declaratory judgment invalidating SEOC for want of legal power in WSSC to adopt it, or, if SEOC was authorized, declaring SEOC as adopted to be unreasonable and void.

The complaint sought an injunction against future collection. Joining as plaintiffs were a mix of developers who had paid SEOC directly and of purchasers of new homes who had paid their developer’s SEOC costs in the purchase prices of their homes. Plaintiffs sought refunds individually and on behalf of a class. In its final judgment the trial court invalidated SEOC for lack of authority in WSSC to adopt it at all and because SEOC, as adopted, was unreasonable in amount.

The court enjoined future collections but then stayed the injunction pending this appeal. The circuit judge ordered WSSC to make restitution of SEOC paid after this suit was filed to direct payors of SEOC or, where direct payors had recovered their costs, to the payor’s successor in title. The judgment did not order restitution of SEOC paid prior to suit. WSSC appeals.

It urges that an administrative remedy before the Public Service Commission of Maryland (PSC) has not been exhausted; that the action is barred by laches; that the trial court erred in both of its conclusions on the merits; that refunds cannot be ordered in any event; and that the class of plaintiffs was improperly enlarged after the trial had ended. Plaintiffs cross appeal. They seek to enlarge the recovery of refunds to include SEOC paid prior to the institution of this action. I The threshold question is whether the trial court should have entertained this action as one invoking the ordinary general jurisdiction of the circuit court. “This Court has firmly adhered to the rule that statutorily prescribed administrative and judicial review remedies must ordinarily be ⁵⁵⁴ pursued and exhausted.” Maryland Comm’n on Human Relations v. MTA, 294 Md. 225, 230 , 449 A.2d 385, 387 (1982).

Here we deal with two possible special statutory-remedies. WSSC urges that an administrative remedy lies before the PSC. If that remedy is available, it has not been exhausted. Our case law would then require us to vacate the trial court judgment.

Such a PSC remedy would also be a “special form of remedy for a specific type of case” precluding a declaratory judgment. See Md.Code (1974, 1984 Repl.Vol.), § 3-409(b) of the Courts and Judicial Proceedings Article. Second, because this action seeks a refund of charges collected by a state agency, the action implicates Md.Code (1957, 1980 Repl.Vol.), Art. 81, § 215, the refund statute for public charges imposed by a state agency. A further threshold issue which we shall consider in this part I is whether the trial court should have deferred to the PSC under principles of primary jurisdiction as enunciated in Maryland-Nat’l Capital Park & Planning Comm’n v. Washington Nat’l Arena, 282 Md. 588 , 386 A.2d 1216 (1978).

A The statutes governing WSSC do not always flow in the mainstream of Maryland administrative law. This is initially demonstrated by the fact that WSSC does not even argue that the plaintiffs had an administrative remedy before that agency. We are nevertheless obliged to notice, on our own initiative, an applicable administrative remedy, if any. Usually if one exists, it is before the agency involved in the challenged agency action.

But here we find in Art. 29 no such remedy on application to WSSC with respect to the issues raised by the plaintiffs. WSSC’s exhaustion of administrative remedies argument rests on § 6-110 which provides: (a) On the written complaint of an individual who has a financial interest in the appeal, or on the written complaint of the County Council of Montgomery County or Prince George’s County, and under the rules and regulations of the Public Service Commission, the Public Service Commission on appeal shall determine the reasonableness ⁵⁵⁵ of any assessment, tax, levy, or service charge of the WSSC. (b) The appeal must be taken within 30 days of the date on which the WSSC made the assessment, tax levy, or service charge.[ 4 ] This statute, in substantially its present form, dates back to the creation of WSSC. See Ch. 122, § 22 of the Acts of 1918.

Section 6-110 cannot be a general refund statute in light of the requirement that the appeal to the PSC be taken within 30 days from the date on which WSSC made the assessment, tax levy, or service charge complained of. Further, the terms of § 6-110(a), authorizing the PSC only to “determine the reasonableness” of a WSSC service charge, do not seem on their face to embrace the issue of whether WSSC had statutory power to impose SEOC. Nor can we, at this date, construe those terms in § 6-110(a) to authorize a PSC determination of this challenge to WSSC’s power to adopt SEOC. From the beginning of WSSC, interpretations of this provision by the PSC and by the Attorney General have excluded from the statutory grant authorization in the PSC to determine WSSC’s authority to adopt challenged charges.

There have also been repeals and reenactments by the General Assembly of the statute, but they have done nothing to enlarge the restrictive administrative interpretation. On February 2, 1926, Attorney General Thomas H. Robinson opined on the “scope of the jurisdiction” of the PSC on appeals from WSSC under the 1918 statute. 11 Op.Att’y Gen.Md. 253 (1926). One of the complaints pending before the PSC which prompted the request for an Attorney General’s opinion had been filed by residents of Hyattsville who argued that a proposed WSSC $32 connection charge violated specified sections of the 1918 statute and also violated an agreement between WSSC and the municipality of Hyatts ⁵⁵⁶ ville. Steele v. WSSC, XVII PSC Md. 64, 65 (1926).

The Attorney General advised the PSC that WSSC is the executive body with power and authority to fix and establish rates and charges while your Commission has merely the power and authority to determine whether or not, they are reasonable. The two powers are quite distinct. It is easy to imagine a situation wherein a charge fixed by [WSSC] would be a different one from that which your Commission would have fixed had it the original rate making power, but still be a reasonable one. If upon appeal your Commission found this to be the case, it would be obliged to leave the rate undisturbed.

It, therefore, follows that the power of your Commission is limited to deciding whether or not what might be termed basic rates, that is, the charge per front foot, the charge per hundred gallon, the charge for connections in a given district or zone are reasonable, and does not embrace the right to determine whether or not specific charges in specific instances are justly made. For example, in one of the cases in question it is contended that certain residents of Hyattsville should not be made to bear a $32.00 per connection charge. It is not within your jurisdiction to pass upon the legality of the charge, but simply to determine whether or not under the circumstances, $32.00 is a reasonable amount. Likewise it is not for your Commission to pass upon the authority of [WSSC] to raise the front foot charge from 10c to 13c, but merely to decide upon the reasonableness of the new rate. [11 Op.Att’y Gen.Md. at 254 (emphasis added).] Following receipt of the foregoing opinion, the PSC dismissed its then pending complaint.

It reasoned that the complainants offered no testimony to show that the proposed charge, if lawfully made, would be an unreasonable amount. It is true that the complainants aver that the proposed charge is unreasonable because discriminatory, but the Commission feels that the element of discrimination would affect the legality of the charge rather than the reasonableness of the amount thereof. It appears, therefore, that the ⁵⁵⁷ only question presented to the Commission for determination is whether the proposed charge can lawfully be made. [Steele, supra, XVII PSC Md. at 66-67. 5 ] In 1953 WSSC adopted a schedule of increased use and front foot benefit charges which became the subject of appeals to the PSC. Its then general counsel, Charles D. Harris (later a judge of the Eighth Judicial Circuit), advised the PSC that “it has jurisdiction in the present appeals and is obligated to hold hearings on the reasonableness of the assessments and charges.... ” XLIV PSC Md. 189, 190 (1953).

Counsel based his opinion on the express wording of the statute, “the recognition of the Commission's jurisdiction by the Court of Appeals,” 6 and on the prior cases decided pursuant to the Attorney General’s opinion ruling that the statute “excluded any jurisdiction as to the legality of the charges.” Id. In a “one signature” opinion dated April 3, 1973, reported following the opinion in Blumenthal v. WSSC, LXIV PSC Md. 88, 93 (1973), the PSC was advised that, were it to find WSSC rates to be unreasonable, it could not alter the charges, but the matter would essentially have to be remanded to WSSC under appropriate standards determined ⁵⁵⁸ by the PSC. And see Blumenthal v. WSSC, LXVIII PSC Md. 542, 544 (1977). Illustrative of the type of case which the PSC does hear under § 6-110 is Blumenthal v. WSSC, supra, LXIV PSC Md. 88, where the reasonableness of increases in water and sewage service charges turned on aspects of WSSC’s need for working capital.

The PSC has refused to hear complaints against WSSC involving issues more narrow than reasonableness of rates, see, e.g., Smith v. WSSC, LVII PSC Md. 76 (1966) (dismissing complaint alleging WSSC’s failure to exempt complainant’s property from front foot benefit charges), and it has refused to hear challenges to the legality of front foot benefit charges, see, e.g., Steele v. WSSC, XVII PSC Md. 155 (1926). The PSC has also dis: missed a complaint that front foot benefit charges bore no relation to the actual cost of improvements when the appeal was noted more than thirty days after the front foot benefit charge for the project was established and more than thirty days after the date of the notice to the complainant of the annual charge levied against the complainant’s property. Tylor v. WSSC, LXIII PSC Md. 438 (1972). In the case before us WSSC points to language appearing in Blumenthal v. WSSC, supra, LXVIII PSC Md. at 544, a case involving a challenge to the reasonableness of WSSC rates for water and sewer service which became effective July 1, 1975, and January 1, 1976.

In that case WSSC argued that, because the complainant had presented no evidence on the issue of reasonableness, the PSC was obliged to find the rates to be reasonable. The PSC hearing examiner, however, viewed Potomac Edison Co. v. PSC, 279 Md. 573 , 369 A.2d 1035 (1977) as authority for an independent review by the PSC exercising its expertise. The examiner then said that, “[hjowever, a review of the record indicates that these rates were lawfully established pursuant to the applicable provisions of the WSS[C] code,” had been approved by the local governments, and were reasonable. LXVIII PSC Md. at 545.

This single statement cannot overcome the language of § 6-110 and its interpretation by the Attorney General, by the PSC, and by counsel to the PSC. ⁵⁵⁹ WSSC structures an argument based on the complaint to the PSC questioning the power of WSSC to adopt the Interim Sewer Service Charge which had a circuit court counterpart before this Court on appeal in Northampton Corp. v. WSSC, 278 Md. 677 , 366 A.2d 377 (1976). In our Northampton WSSC made no argument that the special statutory remedy was a § 6-110 proceeding before the PSC, and this Court took no notice of a possible failure to have exhausted administrative remedies. After this Court sustained ISSC, WSSC moved to dismiss the complaints before the PSC. That motion was granted without objection by the complainants.

WSSC now sees an indicia of PSC jurisdiction in the PSC’s not having more swiftly dismissed the complaint in its Northampton from its docket. If there is any significance in the timing between the two proceedings, it does not favor WSSC. While the PSC has been administratively applying the Attorney General’s 1926 interpretation of “determin[ing] the reasonableness,” the General Assembly has amended the statute by Ch. 231 of the Acts of 1955, by Ch. 337 of the Acts of 1970, and by Ch. 729 of the Acts of 1972. Chapter 805 of the Acts of 1981 brought all of the statutes governing WSSC into the Code of Public General Laws.

Chapter 767 of the Acts of 1982 was a general revision, restatement, and recodification of the statutes applying to WSSC. No change of substance has been made by the General Assembly to § 6-110. This legislative acquiescence in the administrative construction gives rise to a strong presumption that the administrative interpretation is correct. See Valentine v. Bd. of License Comm’rs of Anne Arundel Co., 291 Md. 523 , 435 A.2d 459 (1981).

Section 6-110 does, as WSSC contends, create an administrative remedy. That remedy is, however, limited to the “reasonableness of any assessment, tax levy, or service charge of the vv’SSC.” Thus, § 6-110 in the instant case gives rise to the anomaly that the plaintiffs’ challenge to the power of WSSC to adopt SEOC is not embraced within that special statutory remedy while the plaintiffs’ challenge to the reasonableness of the SEOC rates is subject to that special statutory remedy. ⁵⁶⁰ We emphasize that this holding results from the language of, and agency practice under, § 6-110, despite the holding’s asymmetry with basic administrative law principles. In terms of the arguments presented by the parties in this case, we reject the oversimplified contention which the plaintiffs advance by citing Comm’rs of Cambridge v. Eastern Shore Public Service Co., 192 Md. 333 , 64 A.2d 151 (1949) for the proposition that an administrative remedy may be bypassed if a legal question of statutory interpretation is presented. Nor do we here apply the “ ‘constitutional exception’ ... [which] permits a judicial determination without administrative exhaustion when there is a direct attack upon the power or authority (including whether it was validly enacted) of the legislative body to adopt the legislation from which relief is sought.” Harbor Island Marina, Inc. v. Calvert Co., 286 Md. 303, 308 , 407 A.2d 738, 741 (1979).

Nor do we imply that, in some other context, the scope of the language—“determine the reasonableness of any assessment, tax levy, or service charge”—would not present an issue of statutory interpretation to be decided initially by an administrative agency even in the face of an argument that the “constitutional exception” was presented. See, e.g., Maryland Comm’n on Human Relations v. MTA, supra, 294 Md. at 233-35 , 449 A.2d at 389-90 . What we do hold is that the administrative construction at the PSC of § 6-110 has become so encrusted on § 6-110 that there is not a special statutory remedy before that agency with respect to a legal challenge to the power of WSSC to adopt SEOC. B The refunds sought by the plaintiffs raise the possibility that Art. 81, § 215 is a special statutory remedy requiring us to mandate dismissal of the action in the trial court.

In relevant part § 215 provides: Whenever any person shall have erroneously or mistakenly paid to any State ... agency authorized to collect the same more money for ... charges, than was properly and ⁵⁶¹ legally payable, ... he may file with such agency a written claim for the refund thereof.... Such claim for refund shall be ... supported by such documents as may be prescribed by the Comptroller____ The procedure for making claim for refund is found in Art. 81, § 216. It provides in part: If after investigation and hearing such agency determines that such claim is just and proper and should be allowed, in whole or in part, it shall so indicate and shall forward the claim to the Comptroller ... for approval. If approved the claim for refund shall be allowed____ If the Comptroller ... refuses to approve the claim, the claim shall be disallowed....

The agency shall notify the taxpayer in writing of any action taken by it or by the Comptroller.... WSSC is not a state agency within the meaning of Art. 81, § 215. The budget of WSSC is not included in the state budget submitted by the Governor and approved by the General Assembly. WSSC’s budget is approved by the county councils of the two counties within which the District lies.

The refund provisions of Art. 81, §§ 215 and 216 contemplate a state agency which is at least subject to some role of the Comptroller in connection with disbursing funds. Once again, WSSC is a state agency which is out of the mainstream. Article 81, § 215 does not apply to the refund sought in the case before us. It is not a special statutory remedy and does not prevent an original action for a declaratory judgment on the issue of the power of WSSC to adopt SEOC.

C Nor is the initial determination of the issue of WSSC’s power to adopt SEOC governed by the doctrine of primary jurisdiction. Primary jurisdiction “is a judicially created rule designed to coordinate the allocation of functions between courts and administrative bodies.” Maryland Nat’l Capital Park & Planning Comm’n v. Washington Nat’l ⁵⁶² Arena, supra, 282 Md. at 601 , 386 A.2d at 1225-26 . The doctrine “comes into play when a court and agency have concurrent jurisdiction over the same matter ... and there is no statutory provision to coordinate the work of the court with that of the agency.” Id. at 601 , 386 A.2d at 1226 (citation omitted). Inasmuch as part I A of this opinion concludes that the PSC has no jurisdiction under § 6-110 to determine the statutory power issue, there is no concurrent jurisdiction between the trial court and the PSC on that issue.

The problem presented here is not one in which both a court and an agency are authorized to decide an issue so that the question becomes which should proceed first on that common issue. Here the trial court had original jurisdiction to decide one issue (WSSC’s power to adopt SEOC) while the PSC was statutorily designated as the agency initially to decide another issue (reasonableness of SEOC charges). In that alignment, whether the court or agency proceeds first is not a matter of primary jurisdiction, but simply a question of whether a stay should be granted as to one issue while another issue is decided in the appropriate forum. In the'case before us WSSC never requested a stay in order first to proceed on the reasonableness of rates issue before the PSC.

II

WSSC has briefed a laches argument. That defense was raised in WSSC’s answer to the complaint and was rejected by the trial court in its decree, although the defense is not discussed in the trial court’s opinion. SEOC was first adopted June 13, 1979, to be effective July 1 of that year. Plaintiffs brought this suit on September 17, 1981.

On analogy to the general three-year statute of limitations applicable to actions at law, laches does not apply here. See Desser v. Woods, 266 Md. 696, 704 , 296 A.2d 586, 591 (1972). ⁵⁶³ WSSC proposes that the analogy be drawn instead to the 30 days provided by § 6-110(b). That statute, however, applies to the special statutory remedy before the PSC while the issue now under consideration, WSSC’s authority to adopt SEOC, is not subject to that special statutory remedy. Where, as here, the claim under consideration properly invokes the original jurisdiction of the circuit court, the analogy for laches should not be to a time limit for initiating a special statutory administrative remedy applicable to a different theory of the case.

Even though analogy is properly made to the three-year statute, WSSC nevertheless claims it has been prejudiced in two ways. First, it points to the increase with the passage of time in the amount of SEOC collected and involved in the claims for a refund. Because we shall hold in part IV of this opinion that WSSC is not obliged to make any refund of SEOC collected from the plaintiffs or their class, this branch of WSSC’s prejudice argument is moot. The second claim of prejudice to WSSC lies in the disclosure in its official statements circulated to potential purchasers of issues of bonds and notes that litigation challenging SEOC is pending.

The argument is that a higher interest rate may have been paid by WSSC on the offering than would have been paid had there been no litigation. The point is irrelevant to a defense based on delay by the plaintiffs in suing inasmuch as the argument depends on a suit having already been filed. The argument is also speculative because WSSC never proved any connection between the interest rate actually paid and this litigation. Ill With respect to the merits of this controversy, the plaintiffs argue, and the trial court held, that the statutes governing WSSC do not authorize it to impose a special connection charge designed to pay a substantial part of the increase in WSSC’s long-term debt obligations attributable to growth in the water and sewer system.

WSSC, in effect, ⁵⁶⁴ admits that the power is not expressly conferred, but argues that it is implied in § 6-101. In this regard WSSC relies heavily on Northampton, supra, 278 Md. 677 , 366 A.2d 377 . Alternatively, WSSC contends that because it “is a public utility it has the same inherent power as does any other public utility to establish and structure the rates and charges which it determines should be applied to allocate properly the costs of serving its customers.” The only authority dealing with WSSC which is cited for this inherent power proposition is WSSC v. Southern Management Corp., 58 Md.App. 136 , 139 n. 1, 472 A.2d 505 , 507 n. 1 (1984). The case was an original action in a circuit court to obtain refund of an alleged overpayment of water user charges which had been billed on an estimated basis and paid under protest by the user.

The Court of Special Appeals affirmed judgment for the user based in part on § 6-104(b)(3) which provided that “the final bill for the 6 month period shall be based on the actual consumption adjusted by the previous estimates.” In footnote 1 the court cited Sims v. Alabama Water Co., 205 Ala. 378, 380 , 87 So. 688, 689-90 (1920) for the proposition that “[w]here a consumer has a bona fide billing complaint with a public utility, the proper recourse is payment of the amount demanded under protest and suing for its recovery.” Southern Management does not support the proposition that the scope of power of WSSC is to be tested by analogy to the powers of public utilities generally. Nor need we here express any view on whether or to what extent a “public utility” enjoys inherent rate-setting powers. WSSC exists only by virtue of statutes and its power is tested against those statutes. WSSC also cites cases from other jurisdictions involving municipalities which imposed connection charges analogous to SEOC. 7 These cases have sustained the charges under ⁵⁶⁵ the particular charter or statutory authorization to the municipality involved.

See Associated Homebuilders of Greater East Bay, Inc. v. City of Livermore, 56 Cal.2d 847 , 17 Cal.Rptr. 5 , 366 P.2d 448 (1961); Loup-Miller Constr. Co. v. City & Co. of Denver, 676 P.2d 1170 (Colo.1984); Western Heights Land Corp. v. City of Fort Collins, 146 Colo. 464 , 362 P.2d 155 (1961); Contractors & Builders Ass’n v. City of Dunedin, 329 So.2d 314 (Fla.1976); Norwich v. Village of Winfield, 81 Ill.App.2d 197 , 225 N.E.2d 30 (1967); Seltzer v. Sterling Township, 371 Mich. 214 . 123 N.W.2d 722 (1963); Metropolitan Utilities Dist. v. City of Omaha, 171 Neb. 609 , 107 N.W.2d 397 (1961); Colonial Oaks West, Inc. v. Township of East Brunswick, 61 N.J. 560 , 296 A.2d 653 (1972); Airwick Industries, Inc. v. Carlstadt Sewerage Auth., 57 N.J. 107 , 270 A.2d 18 (1970), cert. denied and appeal dismissed, 402 U.S. 967 , 91 S.Ct. 1666 , 29 L.Ed.2d 132 (1971); Lafferty v. Payson City, 642 P.2d 376 (Utah 1982); Banberry Development Corp. v. South Jordan City, 631 P.2d 899 (Utah 1981); Home Builders Ass’n v. Provo City, 28 Utah 2d 402 , 503 P.2d 451 (1972). These cases are distinguishable from the matter at hand. Typically, they involve broadly worded grants of express power authorizing the municipality to construct, operate, and maintain a water and sewer system and to establish just and reasonable rates and charges to pay for connection to and use of the system.

On the other hand, the general structure of Art. 29 which grants WSSC’s powers usually relates a specific revenue-raising measure to identified costs. For example, § 6-101, from which WSSC says authority to impose SEOC is implied, reads: (a)(1) For every service connection under § 3-104 of this article, the WSSC shall set a charge that the WSSC determines to be reasonable. ⁵⁶⁶ (2) The charge shall be uniform throughout the sanitary district for connections of those sizes and classes for which the average cost reasonably may be ascertainable and for the actual cost for all other connections, subject to a revision of the charges annually by the WSSC. (3) All property owners shall pay the charge at the office of the WSSC before the actual connection with any pipe or private property is made. (b) Of all of the revenue over actual cost that is derived from the charges, the WSSC shall: (1) Retain one-half of the revenue in a contingency fund for repair, replacement, or any extraordinary expense in the maintenance and operation of the water supply, sewerage, and drainage systems under the control of the WSSC; and (2) Apply one-half of the revenue to pay the bonded debt of the WSSC.

The service connection under § 3-104 is a connection from a water main or sanitary sewer to the property line of a lot abutting a street or right of way in which the water main or sanitary sewer is installed. See § 3-104(a)(l) and the definition of “service connection” in § l-101(h). Front foot benefit charges are dealt with in Title 5 of Art. 29. Section 5-101(a) declares “[t]he construction or acquisition of water mains or sewers [to be] a benefit to all property that abuts the water mains or sewers.” “To assess benefits for the construction of water supply and sewerage systems,” § 5-101(b) directs WSSC to “divide all property that abuts on a street ... in which a water main or sanitary sewer is to be laid” into designated classes.

The levy is based for each class of property on “[t]he approxi- ■ mate cost of the construction as an integral part of the whole system,” among other factors. § 5-101(e)(l). A benefit charge is levied once a year, § 5-101(f)(2), “for a period of years co-extensive with the period of maturity of the bonds the proceeds of which financed the construction of the water mains or sewers.” § 5-103(a). Section 4-107 then provides in part: ⁵⁶⁷ All sums collected by the WSSC for benefits levied against property for water supply, sewerage and drainage construction, as provided in § 5-101 of this article, shall be set aside as a separate fund to be known and designated as the “Current