Opinion
Nos. 28193, 28194, 28195, 28218, 28219 and 28228
Decided June 18, 1941.
Municipal corporations — Free water to public, religious, benevolent, educational or charitable institutions — Section 2302-2-D, Ordinances of Cleveland — Giving away city property, without consideration — Section 6, Article VIII, Constitution.
IN MANDAMUS.
These proceedings involve furnishing free water to the relators. A former per curiam opinion appears in Stale, ex rel. Mt. Sinai Hospital, v. Hickey, Dir., 137 Ohio St. 474, 30 N.E.2d 802. After demurrers to the petitions were overruled, respondent answered.
The affirmative allegations of the answer, common to all relators excepting the board of education, summarized are: (1) That the council was without power to pass the ordinance and that it is ultra vires the city; (2) that the relators are privately operated, controlled and supported, and are not subject to, under the control of or connected in any way with the city and serve no municipal purpose: (3) that Section 2302-2-D of the Municipal Code of Cleveland is invalid, illegal, unconstitutional and an unwarranted and unauthorized exercise of power by the council, (a) amounting, in effect, to a contribution in cash by the city to the relators, (b) attempting to give away, without consideration therefor, property of the municipally owned utility held in trust for the citizens of Cleveland, thereby constituting a violation of the trusteeship, and (c) purporting to authorize giving away, without consideration therefor, property of the city contrary to Section 6, Article VIII of the Constitution of Ohio; and (4) that the donation of water without charge to relators and others within the contemplation of the sections challenged affects each paying consumer in the city, by requiring a higher charge of approximately five per cent or four cents per thousand cubic feet, and as a consequence Section 2302-2-D is invalid, illegal and unconstitutional as an unjust discrimination, since an added charge is placed on the paying water-users for the benefit of the relators. The answer as to the board of education omits the allegation of private status, contains the averment as to not being subject to control by or connected with the city and pleads that the territorial limits of the school district and the city are not the same.
The replies, excepting that of the board of education, admit the private status of the relators. The board of education in its reply admits the boundaries are not identical and pleads that the provisions of the ordinance apply only to the public schoolhouses located within the city limits.
The only evidence in these cases was the deposition of the commissioner of water and heat for the city of Cleveland as to the amount of water furnished to relators and its approximate value and cost.
Messrs. Garfield, Cross, Daoust, Baldwin Vrooman, Messrs. McKeehan, Merrick, Arter Stewart, Mr. Vernon R. Burt and Mr. Kingsley A. Taft, for relators, Mount Sinai Hospital of Cleveland and others.
Messrs. Mooney, Hahn, Loeser, Keough Freedheim, for relators, John R. Hagan and Calvary Cemetery Association.
Messrs. Griswold, Green, Palmer Kapp and Mr. Ira J. Warner, for relators, Children's Aid Society and Trinity Baptist Church.
Messrs. Bushnell, Burgess Fulton and Mr. Randall F. Fullmer, for relator, Board of Education of City School District of Cleveland.
Mr. Henry S. Brainard, director of law, and Mr. Robert J. Shoup, for respondent.
All questions of law presented by the allegations designated one, two and three above were decided in the per curiam opinion promulgated by this court when overruling the demurrers.
Neither the issue of reasonableness of water rates nor the issue of unjust discrimination is pleaded by the allegations designated "(4)," or submitted by argument of counsel for respondent.
No questions are before the court in addition to those presented by the demurrers, and therefore the writs of mandamus will be issued.
Writs allowed.
TURNER, WILLIAMS ZIMMERMAN and BETTMAN, JJ., concur.
WEYGANDT, C.J., and HART, J., dissent.
MATTHIAS, J., not participating.