476 N.E.2d 378 | Ohio Ct. App. | 1984
On March 9, 1982, plaintiff-appellant, Philip Morrical, Jr., filed a complaint in the Court of Common Pleas of Butler County, naming as defendants the village of New Miami, the Waterworks Department of New Miami, and John L. Work, the Superintendent of the New Miami Waterworks Department. In addition to monetary damages, the complaint sought a temporary restraining order as well as preliminary and permanent injunctions, the object of which was to force the *440 defendants to restore water service to real property owned by Morrical and enjoin them from making any further attempts to discontinue the service.
The complaint alleged that Morrical owned property located in the village of New Miami containing an upstairs apartment which Morrical had rented to one Geraldine Mills. The complaint further alleged that Mills, as tenant of the property, used the water service provided to the property and incurred the charges in her name. Mills subsequently vacated the apartment without paying for the water services. Morrical also alleged that the village disconnected the water service to the premises, and, despite his request, refused to connect the water service for a new tenant.
The complaint claimed that the action taken by the defendants in cutting off the water service to Morrical's property was contrary to the
After voluntarily dismissing the waterworks department and John L. Work as defendants, Morrical filed a motion for summary judgment against the village of New Miami. In a judgment entry dated August 4, 1983, the trial court held that the ordinance which New Miami had relied upon in disconnecting the water service to Morrical's property did not contradict either federal or state law. Consequently, Morrical's motion for summary judgment was denied and his claims for injunctive and declaratory relief were dismissed.
Morrical perfected his appeal to this court, asserting two assignments of error. The first assignment of error claims that the trial court erred in declaring that the ordinance relied upon by the village of New Miami as the basis for discontinuing the water service to Morrical's property was not contrary to state or federal law, while the second assignment of error contends that the trial court erred in not granting Morrical's request for a temporary restraining order and preliminary and permanent injunctions. We will treat the two assignments of error together, since the second one will obviously stand or fall on our decision in the first.
Our primary consideration in this case is whether the ordinance relied upon by New Miami in disconnecting the water service to appellant's property is contrary to both federal and state law, specifically the Due Process Clauses of both the United States and Ohio Constitutions. The village relied on New Miami Ordinance No. 1178 (May 3, 1979). Section VIII of the ordinance provides that:
"The owner or owners of private property which is served by the waterworks system and/or sewage system, as well as the lessee or occupant of said premises, shall be liable to the Village for all water service or sewer service supplied to such private property."
In addition, Section VII of the ordinance provides that a statement for water services which is not paid within thirty days from the date of billing will result in the water service being discontinued until such statement is paid in full. Appellant contends that these specific provisions of the New Miami ordinance should be declared unconstitutional.
We begin our discussion of this issue by noting that the Ohio Supreme Court has previously considered the constitutionality of an ordinance of this nature in the case of Pfau v. Cincinnati
(1943),
The defendant city in the Pfau case relied upon an ordinance which made the owner of the real estate liable for all water and service charges rendered to the property whether the account was carried in the name of the owner or in the name of a tenant or another person. The Supreme Court addressed the question of whether the defendant city possessed the legislative power to adopt an ordinance of this nature. Citing Section
While Pfau is still the law in the state of Ohio, we are now presented with a question which was left unanswered by that case: namely, whether the provisions of the New Miami ordinance violate the Due Process Clauses of the United States and Ohio Constitutions. Our research has found no case law in Ohio directly on point and we therefore look to the decisions of other states for guidance in this area.
In Etheredge v. Norfolk (1927),
While the Virginia case appears to support the position argued by appellant in the case at bar, we note that the holding inEtheredge, supra, has been distinguished by other states in cases which have also favorably cited Pfau, supra.
In the unanimous decision of Maryville v. Cushman (1952),
Kentucky has taken a similar position in regards to this question. In Puckett v. Muldraugh (Ky. 1966),
The Puckett court did, however, address the questions of due process and statutory authority. Stating the general proposition "that a legislature may authorize a public utility to impose liability for water rents upon the owner of property without violating the doctrine of due process, * * *" the court went on to state that "[i]f the matter was really one of due process, a state legislature could no more violate this right than could a public utility acting independently." (Emphasis sic.) Puckett,supra, at 254. Citing Pfau, supra, the court in Puckett also determined that the city had the statutory authority for the ordinance in question by way of a Kentucky statute which granted cities the general powers to operate and maintain a waterworks system and to implement a regulation of this nature. The Kentucky Court of Appeals also determined that the ordinance was not so arbitrary or unreasonable that it violated the Kentucky Constitution.
The cases cited herein provide ample support for the proposition that a municipal ordinance which imposes liability on a property owner for water services provided to a tenant on the premises does not violate the Equal Protection Clauses of either the state or federal Constitutions. While we may disagree with the result reached in Pfau, supra, we realize that the principles set forth therein are still valid and still constitute the law in the state of Ohio and that we are obligated to follow it. Although Pfau, supra, fails to resolve the question in the case at bar, the decision in Pfau, as developed and expanded by other jurisdictions, has reached that point where its next logical extension, absent a direct decision by the Ohio Supreme Court, is that an ordinance such as the one enacted by the village of New Miami is constitutional, not only because there is a sufficient statutory basis for the ordinance, but also because the ordinance does not violate due process of law. Accordingly, we hold that appellant's first assignment of error is without merit and is hereby overruled.
Having decided that appellant must fail on his first assignment of error for the reasons set forth above, it likewise follows that the trial court did not err in refusing to grant the temporary restraining order and the preliminary and permanent injunctions sought by appellant. Therefore, we further hold that *443 the second assignment of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
HENDRICKSON, P.J., and CASTLE, J., concur.
CASTLE, J., retired, of the Twelfth Appellate District, was assigned to active duty pursuant to Section 6(C), Article IV, Constitution.