Grim v. Village of Louisville , 54 Ohio App. 270 ( 1935 )

This cause comes into this court on appeal from an order of the Common Pleas Court, dissolving an order of injunction previously obtained therein by the appellant, Howard C. Grim.

The incorporated village of Louisville has for approximately twenty-five years operated and maintained a sewage disposal system and sewage disposal plant. On or about the 21st day of May, 1934, the council of the village, finding that its revenue from general taxation was gradually becoming insufficient to maintain its various municipal functions, and pursuant to the statute in such cases duly passed and adopted in regular session a certain ordinance, No. 251, an exact copy of which ordinance is before us in the record. At all times hereinafter referred to the aforesaid ordinance was in full force and effect.

During the month of February, 1935, the appellant, Howard C. Grim, being the owner of several residence properties in the village, against which certain sewerage rental charges had accrued by virtue of the ordinance above mentioned, the village of Lewisville on relation of its Board of Trustees of Public Affairs instituted an action in the court of a justice of the peace in and for Nimishillen township, whereby the village sought to recover a judgment against Howard C. Grim in the sum of sixteen dollars and thirty-three cents, representing the delinquent sewerage rentals alleged to be due the village.

Thereafter, on or about the 26th day of February, 1935, Howard C. Grim filed his petition in the Court of Common Pleas of Stark county, against the village of Louisville, the clerk of council, and the justice of the peace, praying that until the further order of the court the clerk of council be enjoined from certifying any part of such illegal assessment to the auditor of Stark county, and that the village be enjoined and restrained from prosecuting the action before such justice of the peace, and, further, the justice be enjoined and restrained from hearing, determining and rendering judgment thereon, and that on final hearing the injunction be made perpetual.

To sustain his cause of action Howard C. Grim alleges in his petition that the charges for sewer service assessments against the lots and lands of the plaintiff are wholly unlawful, illegal and void.

Defendant, the village of Louisville, filed its demurrer to the petition of plaintiff in the Common Pleas Court, and upon hearing the same the Common Pleas Court sustained the defendant's demurrer and vacated and set aside the temporary restraining order theretofore allowed, from which order plaintiff appeals.

Section 3647, General Code, defines one of the general powers of the council of a municipal corporation as follows:

"To open, construct and keep in repair sewage disposal works, sewers, drains and ditches, and to establish, repair and regulate water-closets" etc.

Section 3649, General Code, provides:

"To provide for the collection and disposition of sewage, garbage, ashes, animal and vegetable refuse, dead animals and animal offal and to establish, maintain and regulate plants for the disposal thereof."

Section 3891-1, General Code, provides:

"The council of any city or village which has installed or is installing sewerage, a system of sewerage, sewage pumping works or sewage treatment or disposal works for public use, may by ordinance establish just and equitable rates or charges of rent to be paid to such city or village for the use of such sewerage, a system of sewerage, sewage pumping works or sewage treatment or disposal works * * *. Such charges shall constitute a lien upon the property served by such connection and if not paid when due shall be collected in the same manner as other city and village taxes. The council may change such rates or charges from time to time as may be deemed advisable," etc.

Section 3898, General Code, provides:

"If payment is not made by the time stipulated, the amount assessed, together with interest, and a penalty of five per cent thereon, may be recovered by suit before a justice of the peace, or other court of competent jurisdiction, in the name of the corporation, against the owner or owners, but the owner shall not be liable, under any circumstances, beyond his interest in the property assessed, at the time of the passage of the ordinance or resolution to improve."

Upon an examination of the petition in the instant case, and applying the law to the same for a proper disposition of the demurrer to the petition, we have to say that the case in issue involves no special assessments whatever. In the present case the village of Lewisville is attempting to enforce, not a tax, not an assessment, not a special assessment, but a rental especially authorized by Section 3891-1, General Code, partaking of the nature of a tax or assessment. No particular improvement involving a special assessment is provided for or adopted. The village simply proposes to avail itself of a statutory right to maintain and operate a sewerage system constructed nearly twenty-five years ago.

We also note that the ordinance in question further provides:

"This ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public health and safety of said village by reason of a serious condition existing at the sewage disposal plant of the said village, and the necessity for providing funds for the immediate repair and improvement of such plant, and this ordinance shall become effective immediately upon its passage."

Therefore, without prolonging the discussion of this matter further, we are of the opinion that the court below ruled correctly when it sustained the demurrer. Hence it follows that the same judgment will be entered in this court as was entered in the court below.

Decree for defendant.

MONTGOMERY and SHERICK, JJ., concur.