Herrmann v. State ex rel. Cooper

• Decision Date: 29 April 1896
• Citation: 43 N.E. 990,54 Ohio St. 506
• Parties: HERRMANN et al. v. STATE ex rel. COOPER.
• Court: Ohio Supreme Court

43 N.E. 990

54 Ohio St. 506

HERRMANN et al. v. STATE ex rel. COOPER.

Supreme Court of Ohio.

April 29, 1896

Error to court of common pleas, Hamilton county.

Petition by one Cooper against August Herrmann and others constituting the board of administration of the city of Cincinnati. A peremptory writ was awarded, and defendants bring error. Reversed.

In the court of common pleas, a peremptory writ of mandamus was awarded on the petition of Cooper against the board commanding them to permit him to tap the sewer in Ashland street, upon which his residence fronts, on payment by him of the usual license fee of $5, but without payment of any portion of the cost of constructing the sewer. The material facts are that the city constructed a system of sewers on Walnut Hills, including the Ashland street sewer, at a cost of about $142,000. It made assessments on abutting property to the extent of $2 per front foot, which amounted to about half the cost of construction. Some of the assessments were paid, but a portion of the property owners, including him who was then the owner of Cooper's property, resisted the assessment, upon the ground of fraud by the contractor, and their defense finally prevailed. In consequence thereof, the city was adjudged to pay the balance of the contract price. When Cooper applied to the board for a permit to tap the sewer, it refused to grant it except upon compliance by him with the following rule, which it had previously adopted ‘ Wherever public sewers have been constructed, and the cost thereof has been wholly or partly paid out of the funds of the city, and the owner of any abutting property makes application for permit to tap such sewer, no permit shall be issued to any such abutting owner, unless he shall have paid the assessment or assessments levied against his said property for the cost of said sewer; or if, for any reason said assessments have not been paid, or have been released or no assessment has been levied, no permit shall be granted, unless such person shall first pay into the city treasury, for the purpose of repaying the city the amount paid out or to be paid out by said city on account of said sewers, a sum equal to an amount per front foot to be determined by taking the total cost of constructing the main and lateral sewers and drains into which he desires to tap, and divide the gross amount by the number of front feet abutting upon said sewers; provided,...