98 N.E. 1019 (Ohio 1912), 13080, Bd. Of Health v. Greenville

Docket Nº13080
Citation98 N.E. 1019, 86 Ohio St. 1
Opinion JudgeDONAHUE, J.
Party NameThe State Board Of Health Et Al. v. The City Of Greenville Et Al.
AttorneyMr. Timothy S. Hogan, attorney general; Mr. Charles C. Marshall and Mr. Frank Davis, Jr., for plaintiffs in error. Mr. J. C. Elliott, city solicitor, and Mr. D. W. Bowman, for defendants in error.
Judge PanelDAVIS, C. J., SPEAR, SHAUCK and JOHNSON, JJ., concur.
Case DateApril 02, 1912
CourtSupreme Court of Ohio

Page 1019

98 N.E. 1019 (Ohio 1912)

86 Ohio St. 1

The State Board Of Health Et Al.

v.

The City Of Greenville Et Al.

No. 13080

Supreme Court of Ohio

April 2, 1912

Authority of State Board of Health - To require purification of sewage, etc. - Validity of act of April 7, 1908 - Section 1249, et seq., General Code - Constitutional law.

The act of the general assembly passed April 7, 1908, entitled: "An act to authorize the state board of health to require the purification of sewage and public water supplies and protect streams against pollution" now being Section 1249, et seq., of the General Code of Ohio, is a valid and constitutional exercise of the police power of the state.

[86 Ohio St. 2] The city of Greenville, Ohio, by its city solicitor, filed a petition in the court of common pleas of Darke county, averring in substance that the city of Greenville is a municipal corporation in the state of Ohio; that it brings this suit by its city solicitor; that certain of the defendants are members of the State Board of Health of the state of Ohio, and that the other defendants are members of the city council of Greenville, the president of council and the mayor of that city; that in 1890, the city of Greenville constructed a sanitary and sub-drainage sewerage system with outlet into Greenville creek at a point in the open country a considerable distance beyond the extreme eastwardly limits of the city; that Greenville creek has a deep, strong and rapidly flowing perennial current with a drainage area of about 140 square miles, and also fed by innumerable perennial springs, and that the natural volume of water is augmented by about sixty-five thousand gallons of water daily at the sewer outlet from the flushing tanks of the sewerage system; that connected with this sewerage system are about nine hundred sanitary closets with an average use of not over four persons to each closet; that the rest of the inhabitants of the city dispose of their fecal matter by means of privy vaults required to be cleaned annually and the contents disposed of without the municipal limits in a sanitary manner; that for a distance of ten miles below this outlet there are no cities, towns or villages along or adjacent to the creek; that this outlet of the sewer into this creek does not create a public nuisance detrimental to public health or comfort; that on or about the 16th [86 Ohio St. 3] day of September, 1908, the defendant, the State Board of Health of the state of Ohio, having under consideration the conditions existing in and adjacent to the city of Greenville, upon complaint in writing by the trustees of the township in which said city is situated, and having theretofore investigated the conditions complained of, found that the city of Greenville was discharging and permitting to be discharged, sewage and other waste into Greenville creek, and had thereby corrupted said creek so as to give rise to foul and noxious odors, creating conditions detrimental to the comfort of the citizens of Greenville township residing in the vicinity thereof; said State Board of Health notified said city authorities of the complaint filed, and its investigation and finding in reference thereto, and that on the 23d day of September, 1908, an opportunity would be given to said city to show cause, if any, why it should not be required to install satisfactory works or means of purifying its sewage on or before October 1, 1909, and on the 23d day of September, 1908, said board of health found and determined as follows, to-wit: "That the city of Greenville should be required to purify its sewage in a manner satisfactory to the State Board of Health, on or before October 1, 1909," and having certified its said report and findings to the governor and attorney general of the state of Ohio, the same were by them approved on the 4th day of January, 1909.

Said plaintiff further averred that the cost of a plant that would meet the approval of the State Board of Health would be about $35,000; that it would cost $3,000 per year to operate and maintain [86 Ohio St. 4] the same, that when completed and in operation such plant would perpetuate foul and noxious odors detrimental to public health and comfort and would amount to a public nuisance; that the population of said city of Greenville is about eight thousand; that its indebtedness, bonded and otherwise, is $324,246.99; that the valuation of the current tax duplicate is $4,068,900.00, and the present tax levy is 33 mills; that plaintiff has no funds to comply with the orders of defendant, and that to borrow money and issue bonds would create additional debt, and would interfere with, delay and prevent other improvements, which, in the opinion of city officials, are more important and necessary than the erection of a sanitary disposal plant; that therefore the city officials did not proceed to carry into effect the order of said board of health, nor did they make any effort whatever to do so until after the 31st day of October, 1909, when they were notified by the defendant, the State Board of Health, that they must proceed to construct such plant, otherwise the State Board of Health would cause to be imposed and enforced against such officers, the penalties and forfeitures provided by law; and thereupon being so intimidated by said board of health, and not because they considered such findings and orders just and reasonable or warranted by existing conditions, passed and adopted the necessary resolutions to proceed and carry out said findings, and will, unless restrained by the court, issue the bonds of said city in the sum of $35,000, and with the means thus provided purchase the site selected by the board of health and erect and operate a disposal plant thereon at an annual cost [86 Ohio St. 5] of maintenance of $3,000, and plaintiffs allege that said findings of the defendant board of health are insufficient to warrant said orders; that the outlet of said sewer into said creek does not create the condition found by defendant, and upon which its orders are based; that such outlet does not create a public nuisance detrimental to health or comfort; that the act of the general assembly under which the State Board of Health made such finding and order is unconstitutional and void for various reasons set forth in the petition, and praying that a temporary injunction might issue enjoining the members of the city council, and other city officials, and their successors in office, from issuing and selling the bonds of said city for the purposes aforesaid, and that the State Board of Health may be enjoined from taking any steps or proceedings to enforce its said findings and orders, and from imposing or enforcing, or causing to be enforced, the fines, forfeitures and penalties provided by said act against the city officials for failure to comply therewith.

To this petition a motion was filed by the State Board of Health to require the plaintiff to separately state and number its causes of action, and on the 20th day of May, 1910, an amended petition was filed setting forth three several causes of action, reciting the foregoing facts in detail and praying for the same relief as prayed for in the original petition.

To this amended petition a demurrer was filed by the State Board of Health, which demurrer was sustained by the common pleas court and the petition of the plaintiff dismissed, from this judgment [86 Ohio St. 6] the plaintiff appealed to the circuit court, and that court overruled the demurrer to the amended petition. The defendants not desiring to plead further, a perpetual injunction was allowed, and this proceeding in error is now prosecuted to reverse that judgment of the circuit court.

Mr. Timothy S. Hogan, attorney general; Mr. Charles C. Marshall and Mr. Frank Davis, Jr., for plaintiffs in error.

Since the case of Marbury v. Madison, 1 Cranch, 137, the question of the presumption in favor of the constitutionality of a statute duly enacted by the legislature has been generally looked upon as settled. C. W. & Z. Rd. Co. v. Commissioners, 1 Ohio St. 83; Walker v. Cincinnati, 21 Ohio St. 39; Monroe v. Collins, 17 Ohio St. 666.

Where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record presents some other and clear ground upon which the court may rest their judgment and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of the constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it and when, consequently, a decision upon such question is unavoidable. State, ex rel., v. Price, 8 C. C., 30, 4 O. C. D., 296; Collins v. Bingham, 22 C. C., 533; Board of Education v. Sawyer, 7 N. P., N. S., 401.

The first cause of action, as alleged in said amended petition, is based upon the fact that the [86 Ohio St. 7] orders of the said plaintiffs in error, the State Board of Health, are null and void because said act of the general assembly being of a general nature does not have uniform operation throughout the state. This cause of action is the one upon which counsel for the defendant in error, the city of Greenville, rely with most confidence, and base their contention upon the fact that while section 1 of the act is sweeping and applies to every city or village and every portion of the state, it is provided by way of a proviso in section 1 that "no city or village that is now discharging sewage into any river which separates the state of Ohio from another state shall be required to install sewage purification works as long as the unpurified sewage of cities or villages in any other state is discharged into said river above said Ohio city or village."

In the first place, it would seem that counsel are unmindful of the fact that the state of Ohio does not own any part of the Ohio river....

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52 practice notes
  • 202 N.W. 719 (Minn. 1925), 24,578, Schulte v. Fitch
    • United States
    • Minnesota Supreme Court of Minnesota
    • February 27, 1925
    ...92 Minn. 374, 100 N.W. 95; Kramer v. County of Renville, 144 Minn. 195, 175 N.W. 101; State Board of Health v. Greenvillle, 86 Oh. St. 1, 98 N.E. 1019, Ann. Cas. 1913D, 52. By this statute the state made the counties as well as the live stock sanitary board a part of the governmental machin......
  • 74 N.E.3d 787 (Ohio App. 4 Dist. 2016), 15CA1014, State v. Stidam
    • United States
    • Ohio Court of Appeals of Ohio
    • November 21, 2016
    ...Butler v. Jordan, 92 Ohio St.3d 354, 376, 2001-Ohio-204, 750 N.E.2d 554 (2001), quoting State Bd. of Health v. Greenville, 86 Ohio St. 1, 20, 98 N.E. 1019, 10 Ohio L.Rep. 22 (1912). It is undisputed that the General Assembly is " 'the ultimate arbiter of public......
  • Miles Mgt. Corp. v. Firstenergy Corp., 033105 OHCA8, 84197
    • United States
    • Ohio Court of Appeals of Ohio
    • March 31, 2005
    ...conflict with inhibitions of the Constitution before a court will declare it unconstitutional. (State Board of Health v. Greenville 1912, 86 Ohio St. 1, followed.)" Ohio Public Interest Action Group v. Public Util. Comm. (1975), 43 Ohio St.2d 175, 331 N.E.2d 730, at syllabus. {¶ 28}Pla......
  • 34 N.E.2d 219 (Ohio 1941), 28367, State ex rel. Strain v. Houston
    • United States
    • Ohio Supreme Court of Ohio
    • May 7, 1941
    ...6 Cir., 113 F. 232; State ex rel. Village of Cuyahoga Heights v. Zangerle, Auditor, supra; State Board of Health v. City of Greenville, 86 Ohio St. 1, 28, 98 N.E. 1019, Ann.Cas.1913D, 52; State ex rel. Southard, Dir. v. City of Van Wert, 126 Ohio St. 78, 184 N.E. 12. Clearly, Before the ado......
  • Request a trial to view additional results
52 cases
  • 202 N.W. 719 (Minn. 1925), 24,578, Schulte v. Fitch
    • United States
    • Minnesota Supreme Court of Minnesota
    • February 27, 1925
    ...92 Minn. 374, 100 N.W. 95; Kramer v. County of Renville, 144 Minn. 195, 175 N.W. 101; State Board of Health v. Greenvillle, 86 Oh. St. 1, 98 N.E. 1019, Ann. Cas. 1913D, 52. By this statute the state made the counties as well as the live stock sanitary board a part of the governmental machin......
  • 74 N.E.3d 787 (Ohio App. 4 Dist. 2016), 15CA1014, State v. Stidam
    • United States
    • Ohio Court of Appeals of Ohio
    • November 21, 2016
    ...Butler v. Jordan, 92 Ohio St.3d 354, 376, 2001-Ohio-204, 750 N.E.2d 554 (2001), quoting State Bd. of Health v. Greenville, 86 Ohio St. 1, 20, 98 N.E. 1019, 10 Ohio L.Rep. 22 (1912). It is undisputed that the General Assembly is " 'the ultimate arbiter of public......
  • Miles Mgt. Corp. v. Firstenergy Corp., 033105 OHCA8, 84197
    • United States
    • Ohio Court of Appeals of Ohio
    • March 31, 2005
    ...conflict with inhibitions of the Constitution before a court will declare it unconstitutional. (State Board of Health v. Greenville 1912, 86 Ohio St. 1, followed.)" Ohio Public Interest Action Group v. Public Util. Comm. (1975), 43 Ohio St.2d 175, 331 N.E.2d 730, at syllabus. {¶ 28}Pla......
  • 34 N.E.2d 219 (Ohio 1941), 28367, State ex rel. Strain v. Houston
    • United States
    • Ohio Supreme Court of Ohio
    • May 7, 1941
    ...6 Cir., 113 F. 232; State ex rel. Village of Cuyahoga Heights v. Zangerle, Auditor, supra; State Board of Health v. City of Greenville, 86 Ohio St. 1, 28, 98 N.E. 1019, Ann.Cas.1913D, 52; State ex rel. Southard, Dir. v. City of Van Wert, 126 Ohio St. 78, 184 N.E. 12. Clearly, Before the ado......
  • Request a trial to view additional results