Gatton v. City of Mansfield

36 N.E.2d 306 | Ohio Ct. App. | 1940

The plaintiff, Druzella Gatton, appellant herein, instituted a suit in the Common Pleas Court of Richland county, Ohio, seeking relief and damages from the city of Mansfield for cutting off water furnished to her premises. The city of Mansfield filed an answer setting forth, as a defense to the action of the plaintiff, the municipal sewer-rental ordinance, and the rules and regulations of the department of public service, authorizing the shutting off of water to residents delinquent in their sewer rental.

The answer of the defendant further alleged that the plaintiff was delinquent in the payment of sewer rental. To this answer of the defendant the plaintiff demurred, and the court below overruled the demurrer and found that the facts alleged by the defendant in its answer constituted a valid defense. It is to be noted from the record that both plaintiff and defendant agreed that if the demurrer to the answer was overruled, in other words, if the answer of defendant stated a good defense, it would determine this litigation. Section 6 of the sewer-rental ordinance provides as follows:

"Section 6. The charge or rentals levied pursuant to this ordinance shall be collected by the department of public service and the director of said department shall make and enforce such by-laws and regulations as may be necessary for the safe, economical and efficient management and protection of the city's sewerage system and the sewerage pumping, treatment and disposal works; for the construction and use of sewers and connections to the sewerage system and for the regulation, collection, rebating and refunding of such charges or rentals."

The plaintiff contends that the Common Pleas Court erred in overruling the plaintiff's demurrer for the reason that the regulation of the water department, authorizing the shutting off of water for non-payment of sewer rental is without authority, being in conflict with Section 3891-1, General Code. The section of the General Code referred to by the plaintiff is the authority for the adoption of a sewer-rental ordinance, and provides further that sewer-rental 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.

It is the contention of the defendant that the above section was not intended to provide an exclusive method for the collection of sewer rentals. It is well settled that a municipality may shut off water for the non-payment of a delinquent water bill.

There seems to be no case in Ohio directly in point covering this section. Section 3891-1, General Code, provides the method by which council may by ordinance establish the rental, or charge of rent, to be paid to the city or village for sewerage services and prescribes how the same shall be collected.

This court, sitting in Stark county, Ohio, on October 10, 1935, in the case of Grim v. Louisville, 54 Ohio App. 270,6 N.E.2d 998, held that a charge for the maintenance of a sewer system is not a tax assessment, or a special assessment, but a rental authorized by statute, partaking of the nature of a tax or assessment.

We further held that if the rental is not paid when due, it may be recovered by suit, which provides an additional remedy other than certifying it as delinquent; so that the main and principal question in the instant case is whether the rule and regulation, providing for the discontinuation of a collateral service closely related to the water service, is authorized and valid.

In the case of Dodd v. City of Atlanta, 154 Ga. 33,113 S.E. 166, it was held that the city had a right to shut off the water when the tax charge was not paid, the services being closely related and considered as one transaction. So that from the record in this case, we are of the opinion that the sewer rental is based upon the amount of water used, the operation of the sewerage system is dependent upon the water supply, and the water and sewer service may be rightfully considered as one transaction.

Therefore, we hold that the regulation adopted by the director of the department of public service of such city — that the water supply be shut off to residents delinquent in the payment of water and sewer charges to said city — is not an unreasonable regulation, and that this regulation is duly authorized under the ordinance passed by the city of Mansfield.

For that reason the demurrer to the answer of the defendant, the city of Mansfield, was properly overruled and so holding that the answer states a good and valid defense to the petition of plaintiff, the petition is dismissed.

Judgment affirmed.

SHERICK, P.J., and MONTGOMERY, J., concur.