I concur in the opinion prepared by Mr. Justice CHAPMAN in this cause and append hereto Memorandum of authorities amply sustaining the views expressed by him as to two important questions presented.
MEMORANDUM MAY A MUNICIPALITY BY LEGISLATIVE ACT BE AUTHORIZED TO LAY SEWERS THROUGH DESIGNATED ADJACENT TERRITORY, THICKLY POPULATED?
In McQuillin on Municipal Corporations (2d Ed.) Vol. 4, Sec. 1551, p. 312, the following rule is found:
"It is usual for municipal charters, or legislative acts applicable, to provide for the construction of sewers which extend or drain territory beyond the corporate limits."
In 20 Am. Eng. Encyc. of Law (2d. Ed.), p. 1148, it is said:
"It has been held that the authority of a city to act beyond its boundaries may be implied on the ground of a *Page 60 special necessity, as in preserving from deposits of filth a stream which bounds the city, or conducting sewers and drains out of the city, and the like."
In 44 C.J., Municipal Corporations, Sec. 4001, p. 1084, it is said:
"While the general rule is that municipal corporations may exercise their corporate limits, they are sometimes expressly authorized to go beyond such limits for drainage or sewerage purposes."
The court, in Board of Supervisors of Henrico County v. City of Richmond, 162 Va. 14, 173 S.E. 356, said:
"In Dillon on Municipal Corporations, vol. 1, Sec. 237, (5th Ed.) it is said:
"`It is a general and undisputed proposition of law that Municipal corporations possess and can exercise the following powers and no others:
"`First: Those granted in express words;
"`Second: Those necessarily on fairly implied in or incident to the powers expressly granted;
"`Third: Those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of the power is resolved by courts against the corporation, and the power is denied. * * *'
"Section 19 of the charter of the city of Richmond authorizes the city council to enact suitable ordinances to secure and promote the general welfare of the inhabitants of the city, by them deemed proper `for the safety, health, peace, good order, comfort, convenience and morals of the community.'
"It would seem to be `not simply convenient, but indispensable,' for a city to possess the power to contract for the disposition of the sewerage of a thickly settled community *Page 61 just on its borders to the end of the promotion of the health of the inhabitants within its corporate limits."
MAY A MUNICIPALITY REQUIRE PROPERTY OWNERS RESIDING IN SUCH ADJACENT TERRITORY TO CONNECT WITH AND USE THE SEWER SYSTEM FOR SANITARY PURPOSES FOR THE PROTECTION OF HEALTH OF THE MUNICIPALITY?
44 C.J., Municipal Corporations, Sec. 4004, p. 1086, sets out the following rule:
"The ownership of public sewers being in the municipality property owners have no right to make connections with a municipal sewer without the consent of the municipality but the municipality may permit them to make such connections or in the interest of the public health and welfare, it may require them to do so."
In Hutchison v. City of Valdosta, 227 U.S. 303, 33 S. Ct. 290,57 L. Ed. 520, an ordinance adopted under legislative authority by an inland town containing less than 6,000 inhabitants, by which the owners of property abutting upon any street along which sewer mains had been laid were required to install water-closets in their house, and connect the same with the main sewer pipe within thirty days from the passage of the ordinance, under penalty of fine and imprisonment for noncompliance, was held to be a valid exercise of the police power. The court said:
"It is the commonest exercise of the police power of a state or city to provide for a system of sewers, and to compel property owners to connect therewith."
In holding that the legislature might confer power on a municipality to compel owners of property abutting on a street in which a sewer was laid to make connections therewith, the court, in Allman v. Mobile, 162 Ala. 226, 50 So. 238, said: *Page 62
"No police power is more important than that to adopt such sanitary regulations as may be necessary to insure the safety and preserve the health of the inhabitants of a city. Nor do we doubt that the maintenance of an efficient sanitary sewerage system is of prime importance in encompassing the ends sought by the delegation of such power; and surely no sewerage system could be regarded as efficient without the incident of power in the municipal corporation to compel connections of property by its owners with the system. So, on principle and authority, we hold it to be within legislative competency to confer on municipal corporations the power to compel such connections. Bliss v. Kraus, 16 Ohio St. 54; Village of St. Mary's v. Railroad Co.,60 Ohio St. 136, 53 N.E. 795; Railroad Co. v. Sullivan, 32 Ohio St. 152; Health Department v. Rector, etc., 145 N.Y. 32, 39 N.E. 833,27 L.R.A. 710, 45 Am. St. Rep. 579; Bancroft v. Cambridge,126 Mass. 438; Commonwealth v. Roberts, 155 Mass. 281, 29 N.E. 522,16 L.R.A. 400."
The reasons for sustaining the right to compel such connections are well stated in the case of Spear v. Ward, 199 Ala. 105,74 So. 27, as follows:
"As before stated, one of the most important objects of municipal government is the preservation of the public health; and science has demonstrated that nothing contributes more to secure the end than a sanitary system of sewerage and water-closets connected therewith; and the benefits of such a system are largely lost unless the inhabitants of the city can be compelled to connect their premises with the system, and to abandon dry closets and install water-closets. To this end the Legislature has clothed municipalities with the power and authority to pass ordinances, by-laws, etc. The municipal authorities to this extent exercise the police power of the state; and they not *Page 63 only have the power, but the law enjoins the duty and obligation on them to promptly abate or remove all nuisances by which the public health may be affected, and to thus provide for the safety, comfort, and convenience of the inhabitants. All the inhabitants therefore have an interest in seeing that proper ordinances are passed, as well as that, when passed, such ordinances are enforced against all, as the failure to conform thereto by a few may inflict injury and ill health upon the many."
In an Annotation entitled "Power to Compel Connection of Property with Public Sewer," L.R.A. 1918C, p. 258, the following rule is found:
"The rule is well established that the enactment of statutes and ordinances compelling owners to connect their property with public sewers is within the police power, and that the validity of such legislation will be sustained; at least unless under the particular circumstances it is plainly unreasonable or arbitrary. And the fact that the existing sanitary arrangements may have been made under legislative authority or compulsion does not apparently affect the application of the rule."
In support of this rule cases are cited from the United States Supreme Court, Alabama, New Jersey, Massachusetts, Missouri, New York, Pennsylvania and Rhode Island.
In a Note found in Ann. Cas. 1913d 61, 64, it is said:
"A municipality duly authorized by law to construct sewers and to compel property owners to connect therewith may require property owners to do so and may enforce the performance of that duty by necessary and reasonable ordinances. Allman v. Mobile,162 Ala. 226, 50 So. 238; Van Wagoner v. Paterson, 67 N.J.L. 455,51 A. 922; Lower Merion Tp. v. Becker, 42 Pa. Super. 203; Harrington v. Providence, 20 R.I. 233, 38 A. 1, *Page 64 38 L.R.A. 324. See also Hill v. St. Louis, 159 Mo. 159, 60 S.W. 116; In re McCutchon, 22 U.C.Q.B. 613. In Van Wagoner v. Paterson, supra, the court said: `The requirement for connecting dwellings, or for the preparation for the connection of prospective dwellings, or other buildings to be occupied by persons, with a sewer in a highway, is an important sanitary regulation in cities in these modern days, and essential to the public good and the preservation of the public health. It is within the power of the local authorities, under our health laws, to require sewers to be built in streets and to compel connection therewith, at the expense of the abutting owner, and to cause the removal of cesspools and the like from abutting premises. The right to pass and enforce ordinances for these purposes is frequently authorized by statute, and is a part of the police power of the state for the preservation of the public health, and has never been questioned.'"
In Malone v. Quincy, 66 Fla. 52, 62 So. 922, Ann. Cas. 1916D, 208, the holding that an ordinance of a municipality, which in effect prohibits the maintenance of any open surface closets or privies in a certain area, is unconstitutional, is based on the ground that the state has conferred on the particular municipality the express right to regulate the location of earth closets and privies and that in so far as the municipality attempts to prohibit their use it is acting without authority.
MAY A MUNICIPALITY REQUIRE A PROPERTY OWNER USING THE SEWER SYSTEM TO PAY A REASONABLE FEE THEREFOR AND IN DEFAULT OF SUCH PAYMENT MAY THE MUNICIPALITY HAVE A LIEN ON THE PROPERTY SERVED FOR THE REASONABLE FEE CHARGED?
In Robertson v. Zimmerman, 268 N.Y. 52, 196 N.E. 740, an Act of the legislature authorized the mayor of Buffalo *Page 65 to appoint a board known as "Buffalo Sewer Authority" which was to have control of existing sewer system and authority to construct additional sewers. One provision of the act authorized the board to establish sewer rents to be collected from all real property served by its facilities. Such sewer rents were to constitute a lien on the real property served. A taxpayer brought an action to secure a permanent injunction restraining the mayor from appointing the board. The Supreme Court, in affirming a decree rendered in favor of defendant, said:
"The act provides that the Authority is permitted to charge only on a basis of service rendered. Charges based upon services rendered by an authority do not constitute a tax, and the fact that a lien for unpaid charges is permitted against the property served does not affect the validity of the Act."
"Those improvements are necessary because the city has created a menace which must be eliminated if the public health and welfare of the people of the State are to be protected and the users of the system, who will be benefited thereby, must provide the most of the improvements. Since the city cannot itself meet the requirements of the situation, the only alternative is for the state, in the exercise of its police power, to provide a method of constructing the improvements and of financing their cost. The statute in question affords an equitable and proper method of accomplishing such a result."
In Grim v. Village of Lewisville, 54 Ohio App. 270,6 N.E.2d 998, an ordinance imposed a sewer service charge and provided that such charge should constitute a lien upon the property served. Plaintiff is attempting to enjoin the city from prosecuting an action brought for delinquent rentals, contending that the charges for sewer service assessments against the lands of plaintiff are wholly unlawful, *Page 66 illegal and void. The court in rendering a decree for defendant said:
"Upon an examination of the petition in the instant case, and applying the law to the same for a proper disposition of the demurrer to the petition, we have to say that the case in issue involves no special assessments whatever. In the present case the village of Lewisville is attempting to enforce, not a tax, not an assessment, not a special assessment, but a rental especially by Section 3891-1, General Code, partaking of the nature of a tax or assessment. No particular improvement involving a special assessment is provided for or adopted. The village simply proposes to avail itself of a statutory right to maintain and operate a sewerage system constructed nearly twenty-five years ago."