Connor v. Board of Com'rs of Logan County, Ohio, 418.

• Decision Date: 16 April 1926
• Docket Number: No. 418.,418.
• Citation: 12 F.2d 789
• Parties: CONNOR v. BOARD OF COM'RS OF LOGAN COUNTY, OHIO.
• Court: U.S. District Court — Southern District of Ohio

12 F.2d 789 (1926)

CONNOR v. BOARD OF COM'RS OF LOGAN COUNTY, OHIO.

No. 418.

District Court, S. D. Ohio, E. D.

April 16, 1926.

Miller & Middleton and Forrest G. Long, all of Bellefontaine, Ohio, for plaintiff.

E. H. & W. B. Turner, of Dayton, Ohio, and West & Campbell and Elmer L. Goodwin, all of Bellefontaine, Ohio, for defendant.

Before DONAHUE, Circuit Judge, and HICKENLOOPER and HOUGH, District Judges.

PER CURIAM.

This cause came on to be heard upon the motion of the plaintiff for a temporary injunction and the motion of the defendant to discharge the temporary restraining order heretofore issued herein, and to dismiss the petition, for the reason that the court has no jurisdiction of the subject-matter of the action.

The petition prays for a temporary and permanent injunction restraining the board of county commissioners of Logan county, Ohio, from proceeding with the establishment of a sewerage district, the construction of the sewer system in and for such district, and the assessment of the cost of such construction upon the real estate comprising such district, all under the provisions to section 6602 — 1 to 6602 — 33 of the General Code of Ohio, and is in violation of article 14 of the Amendments to the Constitution of the United States. Answer was filed by the defendants, and the questions of constitutionality of the state law were argued at some length, although sufficient evidence was not introduced to permit of final determination upon the merits.

The first question of major importance, presented to the consideration of the statutory court of three judges sitting as under the provisions of section 266 of the Judicial Code (Comp. St. § 1243), is whether the case properly falls within the provisions of this section, or whether it may properly be submitted to and decided by the judge of the District Court sitting alone. The construction of section 266 of the Judicial Code, and the scope of its application to the orders or official acts of administrative officers, boards, or commissions, created by state statutes, to whom limited legislative or administrative powers were delegated for a portion of the state only, was so recently considered and defined in the case of Connecting Gas Co. v. Imes (D. C.) 11 F. (2d) 191, decided February 20, 1926 (Southern District of Ohio, Eastern Division), that it seems unnecessary to examine and announce again the principles there stated. In effect, the decision in that case limited the application of section 266 of the Judicial Code to those actions in which an order of injunction was sought to restrain the action of an officer of the state or of a state board or commission, in either case affecting the state at large as distinguished from a territorial or political subdivision of the state. The application of the language of section 266, that "no interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such state," was limited to the orders made by "state" administrative boards or commissions as distinguished from local boards or commissions.

The question whether the instant case is one which should be decided by a court of three judges is therefore dependent upon a determination whether the board of county commissioners of Logan county, in the establishment of the sewer district and the construction of its sewer system, including local assessments for the payment of the cost, acted as a board of county commissioners or as a state board to which had been delegated the powers with respect to this specific improvement. The court is of the opinion that in the exercise of the powers granted by sections 6602-1 to 6602-33 of the General Code of Ohio the board of county commissioners was acting in its capacity as a board of county commissioners and not as a state board or commission. This opinion is founded upon the fact that the statutes in question do not purport to create a state board or independent sewer commissions, but by their express terms only delegate to boards of county commissioners, then existing, the additional powers incident to supplying sewer systems to rural communities. In the exercise of these powers the county commissioners are authorized to act, and do act, as a board of county commissioners, although the statute grants additional compensation for services thus rendered. This compensation is paid either from the county treasury or by the assessment, but in any event is not paid from the state treasury. The county commissioners are recognized as local officers by the state Constitution, and the board of county commissioners is a local board with quasi corporate powers. The law in effect authorized the board of county commissioners to create an "assessment district" as distinguished from a separate political subdivision. In so doing, the court is of the opinion that this statute merely enlarges its power, but that the local character of the board is unchanged. It is therefore unnecessary in this action to consider what results would follow the creation of a commission, of designated personnel, for the construction of a public improvement within a district defined by the law, such as the Miami Conservancy District, drainage districts, and the like. Whether such commissions are to be considered as state bodies or purely local in character, and whether section 266 of the Judicial Code is to be considered a applicable to them, are questions which the court consider it unnecessary here to decide.

The court being of the opinion that this cause does not fall within the provisions of section 266 of the Judicial Code, it is inappropriate that the two judges who have been called to the assistance of the District Judge to hear and determine the application for injunction should further participate in such hearing and determination. These judges will therefore withdrew from the cause and permit the District Judge alone to determine the question involved.

HOUGH, District Judge.

The jurisdictional question raised by defendant's motion for dismissal is not difficult of solution. The proper allegations as to the amount involved appears in the bill of complaint. The bill contains a claim, supported by appropriate allegations, that the actions taken by the defendants, and threatened to be taken, violate the "due process" and "equal protection" clauses of the Fourteenth Amendment to the Constitution of the United States. Unless it is ascertainable that such allegations fail to contain merit or substance, the jurisdiction of the federal court attaches for the purpose of deciding this as well as all other questions raised by the allegations of the bill. Bacon v. Rutland Ry. Co., 232 U. S. 134, 34 S. Ct. 283, 58 L. Ed. 538; Chicago Ry. Co. v. Risty et al. (D. C.) 282 F. 364; C. & N. W. Ry. Co. v. Eveland (D. C.) 285 F. 425; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369. The same question was also passed upon in the case of City Ry. Co. v. Beard, Treasurer, 283 F. 313, by this court.

Defendant's motion to discharge the temporary restraining order and dismiss the petition is therefore overruled.

There is presented, then, the question as to whether or not the complainant, under the averments of his bill and the proof submitted, is entitled to the remedy of injunction. The act of the Legislature under which the sanitary sewer improvement is being constructed is found in section 6602 — 1 et seq., and provides that, for the purpose of preserving and promoting the public health and welfare, the boards of county commissioners of the several counties of this state may by resolution, lay out, establish, and maintain one or more sewer districts within their respective counties, and may construct, maintain, and operate, main and branch sewers within any such district, together with sewage treatment and disposal works, as may be necessary in order to dispose of the sewage or surface water of the district. Then appear provisions for the appointment of engineers and other assistants, to prepare plans and specifications for the enterprise.

With the consent of the legislative body of an incorporated municipality, evidenced by appropriate resolutions, as in this case, municipalities within any sewer district so established may be placed under the jurisdiction of the county commissioners for the purposes of the improvement. The engineers are given authority under the act, to enter upon private property for the purpose of making surveys and examinations. The credit of the county may be pledged in raising funds to pay for the preliminary expenses of the improvement. After the establishment of such a district, general plans of sewerage and sewage disposal may be prepared and approved by the commissioners, which said plans must also be approved by the state board of health, under the provisions of section 6596, General Code. The commissioners may cause to have prepared detailed plans, specifications, and estimates of cost of the system under consideration. Thereafter the board shall adopt a resolution declaring that such improvement, describing the same and the location, route, and termini thereof, is necessary for the preservation and promotion of public health and welfare, referring to the plans, specifications, and estimates of cost, stating the place where they are on file and may be examined, the estimated cost of maintenance of such improvement for one year, what part of the cost will be paid by the county at large and what part will be specially assessed against the benefited property within the sewer district. (The proceedings for the improvement under consideration in this case provide for the assessment of the entire cost of the...