Summary
In State ex rel. Gordon v. Taylor, 149 Ohio St. 427, 79 N.E.2d 127 (Sup. Ct. 1948), the City of Columbus agreed to allow the Ohio State University to use the city sewers on the campus without cost or expense.
Summary of this case from Jersey City Sewerage Authority v. Housing Authority of Jersey CityOpinion
No. 30835
Decided April 28, 1948.
Municipal corporations — Delegating or bargaining away governmental powers by contract, not authorized — Construction adopted rendering contracts valid, when — Deed of easement for municipal sewer on state university grounds — University not exempt from sewer rental charges thereafter imposed.
1. A municipal corporation is without power to enter into contracts which delegate or bargain away its legislative or governmental powers, or which disable it from performing its public functions and duties.
2. If the language of a contract made with a municipal corporation is susceptible of two constructions, one of which will render it valid and give effect to the obligation of the parties and the other will render it invalid and ineffectual, that construction which will render the contract valid must be adopted.
3. A deed of easement by a state university to a municipal corporation, for the purpose of the construction and maintenance of a sewer to be used by both the university and the citizens of the municipality, in consideration for which the board of trustees of the university and the university were accorded the right and privilege "to use the city sewers on the campus * * * without cost or expense," grants to the university the right to connect with the sewers on the campus without cost and exempts the university from the payment of any cost or expense of the construction of the sewer, but does not exempt the university from the payment of sewer rental charges thereafter imposed by an ordinance of the city to provide a fund for the payment of the cost and expense of the treatment and purification of sewage.
IN MANDAMUS.
This action originated in this court. The relator is Richard W. Gordon, city attorney of the city of Columbus, Ohio, and the respondents are Jacob B. Taylor, business manager of The Ohio State University, Charles Kuntz, comptroller of The Ohio State University, and the members of the controlling board of the state, Hugh S. Jenkins, Attorney General, H.D. Defenbacher, Director of Finance, Joseph T. Ferguson, Auditor of State, Albert L. Daniels, chairman of the Finance Committee of the Senate, and Paul Ballard, chairman of the Finance Committee of the House of Representatives.
The issues are presented to this court upon an amended petition, an answer to the amended petition, a supplemental amended petition, an answer to the supplemental amended petition and a demurrer to the answer to the supplemental amended petition.
The amended petition recites that this action is brought pursuant to a resolution adopted by the council of the city of Columbus. It is averred that Section 3891-1, General Code, effective in the year 1923, authorizes a municipality having or installing a sewerage system to establish a schedule of rents for the use of such system; that the city of Columbus prior to 1937 constructed and has had in operation continuously since that time a sewerage system, including intercepting sewers, regulator chambers, storm stand-by tanks, pumping stations and a sewage treatment works for the treatment of sewage and industrial wastes entering the sewerage system; that on the 23rd day of July 1937, the council of the city of Columbus passed ordinance No. 331-37, effective for three years, to provide funds for the operation, maintenance, repair, enlargement and replacement of such sewerage system, storm stand-by tanks, pumping stations and sewage treatment works, by the establishment of a schedule of rents to be paid by the users of the sewerage system, computed on the amount of water furnished to such users by the city; that on July 23, 1940, council passed ordinance No. 294-40 extending the operation of the sewer rental; and that such ordinance, as later amended, is still in full force and effect. Relator says that, beginning sometime prior to the year 1937, The Ohio State University has been emptying its sewage and Industrial wastes into the sewerage system of the city of Columbus; that, after passing through such system, the sewage and industrial wastes have been treated and are still being treated in the pumping stations and sewage treatment works of the city; that water furnished by the city is used on the premises of The Ohio State University and sewage and industrial wastes therefrom are discharged into the sewerage system of the city; and that the university is not exempt from payment for water so furnished and supplied, but is now, and has been continuously, paying the city therefor.
It is further averred that, pursuant to the authority conferred on the department of public service of the city, statements have been mailed periodically to the university setting forth the amount due and owing to the city by the university for the payment of sewer rental charges, but no part of such charges has been paid; and that on or about July 9, 1945, the respondent Jacob B. Taylor, as business manager of The Ohio State University, refused in writing to recognize the validity of these charges for sewer rentals.
The relator further says that the General Assembly enacted a general appropriation law for the biennium beginning January 1, 1945, and ending December 31, 1946, in which there was appropriated to The Ohio State University the sum of $108,773, which appropriation the General Assembly provided should be "available for the payment of sewer rents claimed by the city of Columbus to be due it from the state of Ohio for the use of the Columbus sewers by The Ohio State University, upon release thereof by order of the controlling board. Said order releasing the same for such expenditure shall not be made until the liability of the state of Ohio for the payment of such sewer rents shall have been established by the Supreme Court of Ohio in an appropriate action therefor."
Relator further states that the amount of rentals due the city is in excess of the amount of money appropriated by the General Assembly and asks a writ of mandamus commanding the respondents to authorize the payment of the above sum to the city in part payment of sewer rentals due and owing it.
The answer of the respondents to the amended petition admits all the allegations of the amended petition except the claim that there is due the city from The Ohio State University the amount claimed by the relator, and denies that there is presently owing to the city from the university any obligation to pay any of the sewer rental charges claimed by the city to be due from the university.
The answer, in part, recites:
"* * * at a time prior to July 8, 1919, it was contemplated by the city of Columbus, Ohio, acting through its representatives, to construct a relief sewer either around or through the premises then owned and occupied by The Ohio State University; that a request was made by the said city of Columbus of the Board of Trustees of The Ohio State University for the granting of an easement through and over the premises of The Ohio State University, for the construction by the said city of Columbus and the operation and maintenance by said city of a forty-two inch sewer along the following lines, to wit:
" 'Situated in the county of Franklin, state of Ohio, and on the grounds of The Ohio State University, beginning at a point in The Ohio State University's ground, 395 feet north of the north line of 12th avenue produced westwardly and 475 feet west of the west line of High street, measured at right angles thereto; thence in a southeasterly direction 618 feet to a point 25 feet west of the west line of High street, measured along the center line of 12th avenue produced westwardly; thence eastwardly 25 feet measured along the center line of 12th avenue produced westwardly to the west line of North High street.'
"Respondents further allege that on the 8th day of July, 1919, at a meeting of the board of trustees, a grant of right-of-way to the city of Columbus was made by said board of trustees for the construction, operation and maintenance of said sewer along the lines set forth above that said grant further provided as follows:
" 'As a further consideration for the grant from said board of trustees to the city of Columbus, the city of Columbus hereby grants the right and privilege to the Board of Trustees of The Ohio State University, and to The Ohio State University, to use the city sewers on the campus of said university without cost or expense to said university, or its board of trustees.'
"Respondents further allege that said grant of right-of-way was executed by the Board of Trustees of The Ohio State University by John F. Cunningham, chairman of said board, and Carl E. Steeb, secretary of said board, and was executed by the city of Columbus, by George A. Borden, Director of Public Service of the City of Columbus, Ohio.
"Respondents allege that by reason of the provisions of said grant of right-of-way set forth above, The Ohio State University is entitled to the use of the sewers of the city of Columbus, on the campus of said university, without cost or expense to said university or its board of trustees, and without payment of any sewer rental charges such as those claimed by relator herein, to be due to the city of Columbus from The Ohio State University."
The respondents then pray that the amended petition of the relator be dismissed; that the writ of mandamus prayed for in this action be denied; and that judgment in their favor be granted. A general demurrer was filed to the answer of the respondents.
While the cause was thus pending in this court, the appropriation by the General Assembly for the years 1945-1946 expired and the case became moot.
Thereafter the relator filed his supplemental amended petition alleging that on June 14, 1947, the General Assembly passed House Bill 495, entitled "An Act To Make General Appropriations for the Biennium Beginning January 1, 1947, and Ending December 31, 1948," and that therein there was appropriated to The Ohio State University the sum of $146,433.
That appropriation was subject to the following limitation:
"* * * The above appropriation shall be available for the payment of sewer rents claimed by the city of Columbus to be due it from the state of Ohio for the use of the Columbus sewers by The Ohio State University, when and after the liability of the state of Ohio for the payment of such sewer rents shall have been established by the Supreme Court of Ohio in an appropriate action therefor."
The supplemental amended petition alleges further that there is now due and owing the city a sum of money in excess of $146,433.
The respondents filed an answer to the supplemental amended petition, admitting the enactment of House Bill 495, denying that there was any money due the city on account of sewer rentals and repeating the original defense set up in the answer to the amended petition.
To this answer the relator filed a general demurrer. The case is before this court for consideration and judgment on the pleadings.
The form of the action was not challenged by counsel in the presentation of the case.
Mr. Richard W. Gordon, city attorney, Mr. E.W. McCormick and Mr. Baxter Evans, for relator. Mr. Hugh S. Jenkins, attorney general, and Mr. R. Brooke Alloway, for respondents.
A single question is presented to the court by this case: Does the conveyance to the city of the easement with the acceptance thereof by the city, in consideration of the right and privilege of the Board of Trustees of The Ohio State University and The Ohio State University "to use the city sewers on the campus * * * without cost or expense" exempt the university from the payment of sewer rental charges provided for by the ordinance of the city and authorized by Section 3891-1, General Code?
The so-called "sewer rental charge" is a service charge required by ordinance to be paid by the users of the sewerage system, computed on the amount of water furnished the users by the city, to provide funds for the operation, maintenance, repair, enlargement and replacement of the sewerage system, storm stand-by tanks, pumping stations and sewage-treatment works of the city of Columbus. No issue is made as to the fairness of the standard by which the rental charge is determined. Such method was under consideration in the case of Gericke v. City of Philadelphia, 353 Pa. 60, 44 A.2d 233, and there approved and adopted.
It is the contention of the relator, first, that the grant of easement does not exempt the grantor from the payment of future rental charges for the operation of the city's sewerage system, including sewage treatment, and that the parties thereto did not so intend or contemplate for the reason that conditions did not then exist requiring such charges and no provision therefor had then been enacted; and, second, that if the grant be so construed as to exempt the university from sewer rental charges, then, and in that event, the act of the director of public service in signing the instrument, and even the acceptance of the grant by the city council, is ultra vires, contrary to public policy and, therefore, not binding on the city of Columbus.
The respondents contend that the city of Columbus, at the time the grant of easement was executed, had the power to levy sewer rental charges, even though not then contemplated, and, further, that the language of the grant of easement is clear and unambiguous and exempts the university from the payment of rental charges.
This case does not present a situation where the city is endeavoring to tax property belonging to the state of Ohio, since it is well established that charges for sewer services, or so-called rental charges, are neither taxes nor assessments. Opinion of Justices, 93 N.H. 478, 39 A.2d 765; Veail v. L. J. County Met. Sewer District, 303 Ky. 248, 197 S.W.2d 413; Town of Port Orchard v. Kitsap County, 19 Wn.2d 59, 141 P.2d 150.
The language of the grant of easement involved herein, if construed as contended by counsel for the respondents, would be so broad and comprehensive as to vest in the university the right to use the city sewer and the benefit of the city's sewerage system without restriction or limitation, and without liability for any future charge or expense of maintenance, renewal or additional facilities required by any change of conditions.
It is to be observed that no boundaries of the campus and no limitation of the demands for sewer service are indicated. The vast increase in the extent of the campus and in the number of buildings erected thereon between 1919 and 1947 is conceded, and a continued increase thereof must be anticipated.
It is well known that for many years most cities of Ohio discharged raw, untreated sewage into rivers, which resulted in many suits for damages caused by such pollution. Such condition gave rise to the requirement for sewage treatment as an essential health measure.
If the university is completely exempted from any charge therefor and is privileged, without any limitation or restriction, to empty into the city sewers all the sewage from the campus, the boundaries of which are not defined or limited and may be indefinitely extended, such exemption could be held valid only if the city, notwithstanding its duty and obligation to protect the health, safety and welfare of the citizens of Columbus, is authorized to relinquish as to the university property the powers and prerogatives vested in the municipality and to contract away its duty and obligation to require all users of the city sewerage system to pay proportionately the cost and expense of an essential municipal function.
We are not in accord with the view that those temporarily in charge of the affairs of the city, in consideration of the permission granted to construct across the campus a sewer which is to serve the university as well as citizens of Columbus, may make an arrangement unlimited in extent and duration which will have the effect of requiring other owners of property in Columbus, in addition to paying their own fair share of the cost of sewage treatment lawfully charged to them, to pay also the additional cost for the treatment of sewage from the university.
In the construction of a sewerage system, a municipality acts in a governmental capacity and, hence, in accepting the grant of easement subject to the right of the university to use the sewer would be ultra vires, if by such exemption the city bargained away all its duties and obligations with reference to maintenance of such sewer and agreed to forever maintain it for the benefit of the university. It is only in the maintenance of a sewerage system that the city acts in a ministerial or proprietary function. City of Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 148 N.E. 846, 43 A. L. R., 961.
If the grant of easement must be given the broad construction contended for by the respondents, the act of the city in entering into such obligation by its acceptance of the grant subject to the conditions imposed was ultra vires.
The rule applicable is clearly and concisely stated in 28 Ohio Jurisprudence, 899, Section 559, as follows:
"Power to contract in particular instances is also expressly conferred by various statutory and constitutional provisions. Such power to contract is, however, subject to certain limitations and restrictions. Thus, it is well established that municipal corporations are without power to make contracts delegating or bargaining away their legislative or governmental powers, or which would disable them from performing their public functions and duties * * *."
Supporting cases are: Ericksen v. City of Sioux Falls (S.D.), 14 N.W.2d 89; Town of Estes Park v. Mills, Admx., 100 Colo. 94, 65 P.2d 1086; State, ex rel. Townsend, v. Board of Park Commrs., 100 Minn. 150, 110 N.W. 1121; Town of Manchester v. Rogers Paper Mfg. Co., 121 Conn. 617, 186 A. 623; City of St. Louis v. Meier, 77 Mo., 13; City of Cleveland v. Edwards, 109 Ohio St. 598, 143 N.E. 181, 37 A. L. R., 1352.
A contrary view, however, is indicated in Thayer-Foss Co. v. City of Woburn, 269 Mass. 186, 168 N.E. 734.
The Manchester case, supra, involved an instrument with provisions similar to those in the instant case. The court held that the agreement did not give the company any exemption from the payment of charges which thereafter might be made for the purification of sewage and a claim for such charges was sustained.
It is stated in the syllabus in the Edwards case, supra, as follows:
"A municipality, in acquiring real estate for public purposes, is not authorized to pay therefor more than its reasonable value. A covenant perpetually exempting real estate, other than that acquired, from special assessments for all purposes, except certain named purposes, is a covenant running with the land, the reasonable value of which is unascertainable, and therefore affords no criterion whereby the value of the consideration can be weighed against the reasonable value of the real estate acquired, and for that reason is ultra vires."
No case has been cited, and we have discovered none, involving a situation such as disclosed in the instant case wherein it was undertaken to go further than to hold valid an exemption from liability to an assessment for the construction of a sewer. Coit v. City of Grand Rapids, 115 Mich. 493, 73 N.W. 811.
The situation presented in the instant case calls for the application of the well established rule that if the language of a contract is susceptible of two constructions, one of which will render it valid and give effect to the obligation of the parties, and the other will render it invalid and ineffectual, that which sustains its validity should be adopted. 9 Ohio Jurisprudence, 420, Section 192; 12 American Jurisprudence, 793, Section 251, and cases there cited.
It is our conclusion that, so far as the agreement in question grants to The Ohio State University the right to connect with and use the sewers of the campus without cost and relieves the university from any assessment for the construction of the sewer, it is valid, but that the city is not thereby obligated to perpetually treat the sewage emptied into the sewer from the campus of The Ohio State University without cost or expense to the university and at the cost and expense of other users of the sewerage system.
It is to be noted that House Bill 495, as set forth in the supplemental amended petition, no longer requires the members of the controlling board of the state to release the appropriation for expenditures by the university, and, therefore, the members of that board in their official capacities are no longer to be considered respondents or necessary to a decision of this case.
The demurrer to the answer to the supplemental amended petition is sustained and the writ will be issued commanding the other respondents named to take the action necessary for the payment of the sewer rental charges due and owing to the city of Columbus, as prayed for in the amended and supplemental amended petition herein.
Writ allowed.
TURNER, ZIMMERMAN and SOHNGEN, JJ., concur.
STEWART, J., concurs in the syllabus but dissents from the judgment on the ground that mandamus is not the proper remedy.
WEYGANDT, C.J., and HART, J., dissent.
Dissents on the ground that this decision leaves the university burdened with a perpetual easement but excuses the city from the performance of the obligation it expressly assumed in return therefor.
I question the availability of the remedy of mandamus in this action. It appears to me to be an attempted substitute for an action at law to collect a debt under a contract. The general demurrer to the answer to the supplemental amended petition searches the record and tests the sufficiency of the amended and supplemental amended petitions. In my opinion, such petitions do not state a cause of action in mandamus.
Furthermore, in my opinion, the contract involved in this case should be held either valid or void in toto. It should not, by construction, be held valid to the extent that it permits the city of Columbus to retain the benefits of the contract with The Ohio State University but to repudiate its burdens.
If the contract is void, as claimed by the relator, a rescission should place the parties in statu quo and extinguish the easement of the city to maintain a trunk sewer across the university campus, until compensation is made therefor.